The Codification of Morality

A few months ago, I was attending a university level criminal law class in a Muslim country that recognizes sharia law in the constitution.  The class was lively, the students were prepared, and it was incredibly enjoyable listening to these students chew through topics like the presumption of innocence and burden of proof.  At one point, during a discussion of the country’s penal code, a student raised his hand and asked why drinking alcohol was against the law in that country, when it was not criminalized in America.  “How can one act be a crime in one country, and not in another?”  The teacher, probably not willing to be waylaid by a philosophical discussion of “what is crime” punted the question and briefly talked about sharia before moving on.  I think it’s too bad that the teacher didn’t delve into the question of “what is crime” because approached from a comparative law standpoint, it is pretty fascinating.

The differences in what acts are criminalized vary from country to country, even when religious law is not taken into account.  A few years ago I was living in the Hague, clerking at a court there.  The very excellent Anne Frank home and museum was a short train trip away in Amsterdam, and I visited a few times.  At the end of the very affecting tour, the curators have set up an interactive learning center.  One exhibit is a “you be the judge” kind of auditorium where they play a short documentary, and then ask the audience to vote on a moral or legal position.  One hypothetical question involved a hate speech situation, where either political or religious reactionaries were advocating for extreme discrimination against a minority.  The hypothetical question that the audience had to vote on was “should this speech be criminalized?”  As a recent law school graduate, I was appalled that anyone would even ask the question.  Of course not!  In America we protect the rights of individuals as a paramount and fundamental value.  My neighbors speech may be heinous, offensive, and despicable, but I defend his right to say it.  (I also defend my right to respond.)  I was shocked that more than half the audience disagreed with my position.  I think that most of the audience was European.  In discussing the issue with my German roommate later, she was unsurprised.  The protection of minorities in the community outweighed free speech rights in many European countries, and she reflected that it was likely a direct outgrowth of post-WWII moral reflection.

Common law vs. civil law countries deal with defamation differently.  In our common law country, we recognize that someone has legal recourse if they have been libeled or slandered, but it is classified as a tort, and therefore does not fall under criminal jurisdiction.  In civil law countries, defamation is usually classified as a crime, and the victim of defamation has the right to go to police for relief.  If anyone has seen or read “The Girl with the Dragon Tattoo” the opening scenes with regarding Mikael Blomkvist’s trial deal with criminal defamation charges, and in the book he actually serves jail time following the guilty verdict.  (No, that’s not a spoiler, folks.)  There can be both good and bad consequences for this rubric.  While we dislike the outcome in Mikael Blomkvist’s case, I know of a domestic violence shelter in a civil law country that was able to shut down a muckraking journalist who was airing slanderous and dangerous statements about the shelter by appealing to the police and filing criminal charges.

So why am I thinking about this?  After sitting in that criminal law class, it occurred to me that codification of laws (or the development of precedent in a common law system) is a process by which society makes decisions about its identity and morality.  When something is deemed “criminal” it means that this issue is so important it moves beyond regular dispute and dispute resolution processes and rises to the level of government interference.  What you, as a commiter of crime, have done is so serious that we ought to expend the treasure of the state and the time and effort of state agents (i.e. police) to find you, try you, and incarcerate you.  Your business is so bad, it is now everyone’s business and we all pay to make sure you pay.  Choosing what falls into that category is serious business, and it is not the same in every culture.  Our own shared history as a nation trumps whatever human inclinations we have for collective protection and that results in varying codified outcomes across countries.

That’s the comparative part of it. Perhaps the more interesting part of it is to think about how we deal with that within our own society.  In America what does crime mean?  By and large, I think we are mostly in agreement about what constitutes crime.  We all think that robbery, assault, and murder are bad and ought to be criminalized.  We disagree when we reach two issues:  (1) the procedure used for dealing with criminal trials, and (2) moral issues that intersect with religious injunctions.  The discussion of Miranda rights can wait for another day (although I would argue that thanks to Dick Wolf and his Hollywood colleagues, Miranda rights are one of our most interesting exports).  The moral issues that intersect with religious beliefs are tougher.  In general, I think that most Americans share a common religion of protection of individual rights combined with promotion of safe communities.  We are more liberatarian than many of our world neighbors and prefer to keep out of each others’ business when it is safe to do so.  (Yes, I am using broad sweeping generalizations.  Work with me here.)  I think we could even consider that while most of our criminal laws reflect common morality, it is a secular morality that recognizes the autonomy and safety of members of the community.  However, there are certain issues that are tougher:  blue laws, alcohol laws, criminalization of certain sex acts and relationships, etc.  How ought we to evaluate the criminalization of activities that we may consider to be wrong, but our neighbors do not recognize as wrong, or vice versa?  Do we have an obligation to try and find common ground and agree on a course for the common good using utilitarian principles, or in the alternative, ought we to vigorously defend our moral positions reasoning that the other side has the ability to defend their ground and through that adversarial process we will find the best path as a society?  Is compromise on criminalization of morality a moral good or a moral failure?

Comments

  1. Both. Neither. Yes. No.

    Politics in a pluralistic society is messy. Sometimes you stand on principle and fight to the end, sometimes you don’t argue at all. Often it isn’t a matter of right and wrong; rather, it is what is expedient. But clearly, an action can be wrong in this locality because its citizens said so, and not wrong in another locality because those citizens haven’t.

  2. Well, it’s citizens or its rulers…

  3. ji, yes, pluralistic politics is messy, but that is a description, rather than an answer to the question of how we “ought” to approach questions of morality crossing with legality–a prescriptive question. How “should” we approach moral issues that are intersecting with the law? By recognizing our pluralistic society and trying to find a cooperative solution that takes into account the needs of the many, or by strongly advocating for a moral position even though it may be a minority position?

  4. Fascinating experience, Karen. So much to think about here.

  5. Karen (no. 3) — As I see it, there is no universal “ought” or “should” — for one moral issue, maybe finding a cooperative solution is better — for another moral issue, maybe strongly advocating is better. And to make it even messier, for one issue, maybe one person finds it appropriate to seek a cooperative solution; while for the same issue, another person finds it necessary to strongly advocate.

    There is beauty in this messiness. Each person follows his or her own path. We minimize the use of terms such as “right” and “wrong” and acknowledge differences (such as on moral/political issues) even while appreciating our similarities (faith in the Lord and building up the Church).

    In my own mind, I acknowledge that I approach some moral/political issues differently than others — inconsistent, perhaps, but not hypocritical. And for any particular issue, there are other Latter-day Saints who are more vigorous than me and maybe a few less vigorous. That’s okay.

    I hope there never is a single and firm prescriptive answer to your questions. Good questions for discussion, and excellent questions for individual self-study, though. Let’s teach correct principles, and let members govern themselves.

  6. MikeInWeHo says:

    “But clearly, an action can be wrong in this locality because its citizens said so, and not wrong in another locality because those citizens haven’t.”

    That’s basically how the Saudis justify not allowing women to vote, etc. Your assertion opens the door to all kind of oppression. Are there no universal wrongs, even if we don’t necessarily agree on them?

  7. MikeInWeHo (no. 6) — I’m not saying that the Saudis or anyone else is “right” or “wrong” in a moral sense — but the reason women don’t vote in Saudi Arabia is because the ruler there has said so — the reason women vote in the United States is because we said so. Each society has to decide for itself, and each person in the society has to decide for him- or herself. A woman voting is illegal in Saudi Arabia but is legal in the United States (provided she is over eighteen and not a felon) — in that sense, it is wrong in Saudi Arabia and right in the United States, and this not for any moral reasons but simply because that is what each society has decided.

    Might a woman in Saudi Arabia feel compelled as a matter of right and wrong to fight to change the system? Yes. But another equally-honorable woman might be content to worry about other matters. That’s okay. There is no universal law saying that all women in Saudi Arabia MUST raise their voices to change the system.

  8. MikeInWeHo (no. 6) — You asked, “Are there no universal wrongs, even if we don’t necessarily agree on them?” There are some universal wrongs, but this is a matter for God. For us on earth, we do the best we can to build communities with our neighbors. Something that is compelling to one person might be of little importance to another person. That’s okay.

    Here’s an example. A local school board proposes a bond issue. Here’s how it might play out, on a continuum:
    (1) We MUST support the children; EVERYONE must support this cause because it is morally right.
    (2) We should support it because it is good public policy.
    (3) We should not support it because it is bad public policy.
    (4) We MUST NOT support another tax; governments are bad; taxes are stealing; NO ONE can support this cause because it is morally wrong.

    Which of these (1), (2), (3), or (4) is “right”? Who gets to make this decision of “right” and “wrong”? I prefer to let each man or woman make his or her own decision, and to let each society make its own decision. By allowing this freedom to others, I hope to preserve it for myself.

  9. Please let me re-write my middle paragraph…

    Here’s an example. A local school board proposes a bond issue. Here’s how it might play out, on a continuum:
    (1) We MUST support the children; EVERYONE must support this cause because it is morally right.
    (2) I choose to support it because it is good public policy.
    (3) I choose not to support it because it is bad public policy.
    (4) We MUST NOT support another tax; governments are bad; taxes are stealing; NO ONE can support this cause because it is morally wrong.

  10. ji, I’m actually uncomfortable with leaving the questions of “right” and “wrong” in the hands of God. That leaves us in a societal position of having to mediate between dueling divine mandates as interpreted by pluralistic followers. But it places those interpreters of God’s will in a position of not being able to compromise because they are responsible for God’s work on earth. Wouldn’t it be much better to negotiate and even celebrate a secular morality that still recognizes right and wrong, but leaves room for negotiation?

  11. Okay, ji, reread your comments, and I think we’re agreeing. I was reacting to the first paragraph in your first comment.

  12. Karen (no. 10) — “Wouldn’t it be much better to negotiate and even celebrate a secular morality that still recognizes right and wrong, but leaves room for negotiation?” That’s the messy process I’m describing where each individual participates according to his or her own decision, and the society’s decision as the outcome of the pluralistic process is the secular morality for that society for the time being. But I’m trying to avoid a situation where I can look at another person and say he or she is wrong for not supporting (or opposing) a cause with the same fervor that I do. Or vice versa, with someone else looking at me.

    I don’t like how we judge our neighbors as unrighteous because they do or don’t support some cause. The “right” and “wrong” labels are bothersome to me because they aren’t always applied to causes but are often applied to people.

    I also seriously cannot imagine who would be the final arbiter of “right” and “wrong” in a societal setting. Who says they’re right? Are “they” right only because they’re in power? To me, any secular morality can only be the consensus of a society that chooses to be governed by that morality.

  13. Can the state promote itself as a moral authority? Maybe it depends on how corrupt it is. After 10 years of profit-driven wars (excluding those before it), state-supported racketeering (health care, for example), legalized torture, etc., that would be like Krusty the Clown promoting himself as the Messiah.

    Assuming that Krusty is not the Messiah, the only workable moral authority can come from the prophets, whether they be Christ, Mohammed or Buddah.

  14. Well, Bradley, you certainly have a flair for the dramatic. If you want to actually witness state-supported racketeering I suggest you travel to a developing country that lacks a credible justice system and internal oversight and transparency mechanisms. Describing political decisions as organized crime is certainly whimsical and charming, but lacks credibility in a nation that is overloaded with oversight agencies, functional police, oversight over the police, and a free media. Sure, there is crime here, but we have the ability to stop it, and it is the exception not the rule.

    As to your actual point, I think this is more about a community consensus creating a type of secular morality rather than a state asserting itself as a moral authority.

    And, I disagree that the only workable moral authority is the prophets. They are certainly one moral authority, but I wouldn’t call it “only workable” when it is one voice in a pluralistic society. I think that people who are not LDS are perfectly capable of moral thought, action, and promotion. In fact, many of the people I admire as prominent moral voices are outside the church. (Yes, there are many inside the church that I admire as prominent moral voices as well.)

  15. Really great post Karen. Thanks. I think I definitely agree with ji and you. I prefer to increase autonomy and promote safe communities.

  16. Karen,
    This a really great post with thoughtful questions. I’m not sure Americans feel any obligation whatsoever to explain their own legislating of laws at home, or how they operate within or without the law abroad. That’s problematic on the international playing field, especially in times of war and nation building.

    Do we have an obligation to try and find common ground and agree on a course for the common good using utilitarian principles, or in the alternative, ought we to vigorously defend our moral positions reasoning that the other side has the ability to defend their ground and through that adversarial process we will find the best path as a society? I feel comfortable saying that yes, we have a moral obligation to find common ground, but even if there was no moral obligation on a practical level it’s simply necessary to find common ground. When in other countries, it’s impractical and proves to be a failure if we use adversarial processes. For instance, when Hillary Clinton asks a new Afghan government to make sure 25% of the officials be women, sure I can see how we can use our logic and morality (neverminding that the number is 18-19% in the US), but I’m not sure it gets us very far (in this case it got us 13%). It seems it would make more sense to work for things like women’s rights from the ground up in outlying communities by building local women’s organizations that could gain legitimacy in a patriarchal culture (or at least alongside the demand for 25%).

    It’s the nature of all sovereign states to fight to maintain their own culture and autonomy. If someone (or some state) goes on a rhetorical attack with claims that their own moral positions are superior, it’s the natural inclination to get defensive, perhaps building up rhetoric to support the opposing position that never would have existed had there not been an attack.

    With these realities, I can’t see compromise on the criminalization of morality as either a moral good or a moral failure, but merely a necessity.

  17. And stepping away from an international scene, I think the same would apply to communities–at least to some degree, within the US. One example might be Prohibition. It doesn’t matter if most the community would vote for it (like in places like Utah during that era where during Prohibition and the decades after moonshine was rampant), the realities forced them to compromise and remove the law.

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